Access and Benefit-sharing

by Tewolde Berhan Gebre Egziabher

Introduction

Human life, like all other animal life, is directly dependent on other animals, plants and

microorganisms. This is because these other species are the sources of human food and most of

medicine. Both food and most of medicine are taken by humans internally, usually by

swallowing. It is obvious, therefore, that the use of living things as food or medicine requires a

precise knowledge of their impacts on human physiology. This impact can be modified to suit

human physiology. Humans depend on other living things also without taking them internally,

e.g. for clothing, shelter, arts and crafts. All these uses are direct and easy to see. Some uses

are indirect because those species on which humans depend are themselves dependent on

other living things. For example, humans do not eat the grass, Hyparrhenia rufa, but cattle do.

This makes Hyparrhenia rufa important for humans. The usefulness of grazing grass for

humans, though indirect, is easy to see. Some indirect uses are less obvious, for instance many

leguminous species, e.g. cowpea or Vigra unguiculata and colver or Trifolium spp. and even

trees, e.g. Acacia abbida and Sesbania sesban restore soil fertility, which is needed to produce

the grain that humans eat. These leguminous plants are also more obviously useful as human

food (copea) and animal feed (all 4 species).

Some living things are useful as food or feed after some toxic components have been removed,

e.g. lupines. Otherwise, they are poisonous.

Paper presented to the "Regional Access and Benefit-sharing Workshop for Eastern and Southern Africa, 2-6 October 2005, Addis Ababa, Ethiopia. Modified from the chapter: Tewolde Berhan Gebre Egziabher, 2005, "Benefit-sharing", in Beth Burrows (ed) The Catch, Edmonds Institute, Edmonds, Washingt6on, USA, p.201-241.

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Therefore, both the direct and indirect uses of other species by humans depend on a precise

knowledge of their physiological impacts and usefulness.

Their usefulness and desired properties have been being maximized by people throughout

history, but especially in the last 10, 000 years of agricultural development. This has been done

through selection and breeding. In the last 2 decades or so, genetic engineering has emerged as

a promissing tgechnology for mixing genes and thus also traits accross totally unrelated

species.

Biodiversity, an intimate knowledge of its nature and properties, and the technologies used for

the application of that knowledge are now, understandably, very important world-wide

variables in this era of globalization.

Knowledge, technologies and biodiversity have throughout human history moved to and fro

accross communities, cultures, and continents constrained only by climatic barriers to the

introduction of new species, by physical barriers to travelling, and by language barriers to

communication. Therefore, they became collectively owned by interacting and exchanging

local communities.

Understandably, there have often been attempts by various individuals and groups within local

communities to keep categories of such knowledge and technologies secret if they could do

harm when not appropriately used, e.g. herbal medicines with serious side-effects, and vermine

poisons.

The first legal barrier erected was the patent system in Venice in 1474(1). The first seed law,

the 1920 Seed Act of the United Kingdom of Great Britain and Northern Ireland, aimed only

to ensure seed quality, but eventually proved a barrier to unhindered access to living things(2).

The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs)(3) of the

World Trade Organization (WTO) has now universalized 7 kinds of intellectual property

rights (IPRs) as legally binding barriers that must be erected by all WTO members to stem the

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free flow of information, technologies and living things presumed to be useful. Of these, a

copyright is explicitly given a minimum of 50 years of protection. A trademark is also given an

explicit indefinite protection provided that it is renewed periodically as required by national

law, with that period before renewal not being less than 7 years. As a system for certifying the

place of origin of a product, the protection of a geographical indication is indefinite. An

industrial design, which is for textiles, is protected for at least 10 years. A patent is protected

for at least 20 years. A layout design of an integrated circuit of an electronic hardware is

protected for at least 10 years. An undisclosed information is given indefinite protection.

The idea behind IPR protection is the giving of a monopoly to the innovator for a set period as

a reward, so that the society at large can benefit from an eventual free flow of the knowledge

and technologies(4).

In principle, the protection of geographical indications would prevent false claims about the

geographical origins of products and the rule of its indefinite protection is thus fair. Similarly

the protection of trade marks would prevent false claims about the institutional origins of

products and the rule of its perpetual protection is likewise fair. The layout-designs of

integrated circuits are of relevance only to the modern industrial sector in the context of

benefit-sharing, and this sector is quite competent in looking after its own interests. Therefore,

I shall not pursue it further. The protection of undisclosed information goes against the idea of

society allowing a period of monopoly in exchange for making the knowledge and

technologies available. Therefore, I cannot see why society should accept the rule protecting it

perpetually. The traditional counterparts, e.g. those that keep components of traditional

medicine as secrets, do not expect the state to enforce their protection. I will, therefore, pass

the perpetual protection of undisclosed information as an abuse of the state, which is meant to

serve all citizens equally, by those who have money and wield power. Patents are used to

protect technologies that could, in principle, be invented by anybody anywhere. Their impact

is pervasive and I will look at them further.

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TRIPs does not deal directly with crop variety protection though its Article 27.3 (b) requires

states to “provide the protection of plant varieties either by patents or by an effective sui

generis system or by any combination thereof”(5). Therefore, TRIPs implicitly includes

breeders’ rights. Patents and some types of breeders' rights interrupt the customary free flow of

genetic resources. Therefore, they justify the call for sharing from the unfairly monopolized

benefits.

I will examine in what follows patents and plant variety protection laws. But, I will also

briefly look at copyrights, geographical indications and industrial designs because of their

importance for the South. However, before I do that, it is essential to make it clear that TRIPs

consists only of private rights (6) while innovations in the non-industrialized world of the

South are collective, originating from local communities(7). It would also be helpful in

understanding the issues to point out how this focus on the individual natural and legal person

arose in the industrialized countries of the North to the total disinheritance of the local

community, now relegated as innovative mainly to the developing countries in the South.

The Evolution of Innovations, the Local Community, and Gender Inequality

The earliest remains of technological achievements, stone tools, are found in the areas of

human origin in the Rift Valley of Eastern Africa. With increasing distance polewards and

upwards from this area, technological remains become increasingly more recent and

incremental technological additions more and more complex (8). This is supported by the

dating of the oldest stone tools by, among others, Clark(9), Clark and Kurashina(10), and

Kraybill(11). The empirical data are consistent with the biogeographical fact that species

move into mew areas provided that those areas are suitable for their growth and reproduction

and provided that their progeny can physically disperse into them(12). More than any other

species, humans drastically change new areas into which they move to make them like the

areas in which they evolved and thus suitable for their physiology, i.e., they make the new

areas they go into like those of the Rift Valley in Eastern Africa to the extent that their

physiology requires.

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In the Rift Valley of Eastern Africa, humans co-evolved with their predators, prey, food

plants, disease causing organisms and competitors. The path of evolution that gave them a

competitive advantage, that of modifying their environment, enabled them to selectively

favour the plants and animals that were useful to them, producing agriculture. Their effort to

modify their environment to be at the temperature they evolved in gave rise to the construction

of shelters and the making of clothing through tanning leather, weaving, etc., and thence to

other industries. This meant that the technological frontier kept moving further and further

polewards(8).

While the early humans were living with their predators and competitors, which were effective

as they had co-evolved with them, survival depended on group action as the human individual

is physically neither as strong as the lion nor as fast as the gazelle. Human evolution was thus

correlated with a strong community organization which subsumed the individual to defeat the

lion and to surround and kill the gazelle. This meant that, since the individual continually

interacted with others except when asleep, community considerations were always paramount.

This is not to imply that individual needs could remain unmet, but that the room for antisocial

traits in the individual was very limited, and, conversely, that the community had to be

sensitive to individual needs.

When the economic system was hunting and/or gathering, human bands were mobile, having

to always find new ground with new food, as they now are in hunter/gatherer societies in parts

of all the continents. The mobile unit of society (subclan or clan) was then the basic unit of

organization, with the individual finding her/his role and share of power and benefits through

the group. Genealogically related sub-clans and/or clans then constituted higher, and

increasingly less clearly defined, levels of organization. An appreciation of this can be

obtained by reading the history of the ancient Israelites in the Old Testament.

Crop cultivation, and to a lesser extent also fishing, fixed the family to a specified spot. The

interactions of the individual with society then came to be determined more and more by

geography rather than by genealogy. Initially kinship lines and geographical positions were

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presumably very strongly correlated. But with intermarriages outside lineage affinities at the

edges and with population movement, the correlation became reduced with time. In

accommodating the new geographically determined interactions outside the clan or tribe, a

higher unit of organization incorporating both geographical and genealogical systems had to

be found. Therefore, culture, delimited by geographical extent, replaced genealogical

relationship except at the family (extended or nuclear) level. It may sound ironical, therefore,

that by tying down the individual to a spot, crop cultivation acculturated the society to accept

being part of a bigger and more diverse group and thus bred a higher level of universalism

than hunting and/or gathering with their wider (more universal) space for the individual to

move in and encounter diversity.

Pastoralism unrelated to crop production tends to be transhumant and is, in its geographical

context, of the same effect on social organization as hunting and/or gathering. Therefore,

transhumant pastoralists retain organizational hierarchies based on lineage. The tragedy with

Somalia and, perhaps to a lesser extent with Afghanistan, can probably be explained by the

low ability to accept outsiders and consequently the reduced level of universality dictated by

clan/tribal allegiances fostered by the prevalent transhumant economic system. It is perhaps

equally revealing to note that the long civil war in neighboring Ethiopia, which is primarily a

country of peasants (farmers), remained that of competitors for power, and it stopped in 1991

as soon as one side won.

As humans moved downwards in altitude early on in their history as a species, cooling was the

only environmental variable which required intervention to make their new areas like that of

their place of origin. Since the problem of heat was solved by merely sitting under shade in

the early afternoon, the collective (community) organization developed by humans in their

place of origin did not need to change. Similarly, when they moved upwards near the Rift

Valley, keeping warm and dry at night was the main environmental problem since seasonality

was negligible. They could thus build their shelters for the night and continue with their usual

community activities by day. But when they moved polewards, the increasing seaonality made

it essential to stay indoors even during the day for increasingly longer time each year. This

can be presumed to have made the family rather than the local community more and more the

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functional unit of organization and the focus of life(13). This is, of course, a gross

oversimplification and cultural and historical factors can be expected to influence very much

the balance between family and community allegiances. This is because, as humans become

technologically advanced, the impact of the environment becomes less important, and the

challenges and responses thus become more diverse(8).

Hunting was done primarily by men as a group. The increased dependence on hunting, which

was the case polewards owing to seasonality reducing food of plant origin, would thus have

given men an obviously prominent role in the survival of the family and an advantage over

women. According to Gough(14), for example, in 60% of hunting societies, marriage involves

the woman moving into the unfamiliar band of the man while the reverse happens in 16-17%

of the societies only, indicating the woman’s disadvantage. In contrast, gathering, which

remained the main food source equatorwards owing to the perpetual availability of food

plants, was done by women. This helped them stand their ground against the physically

stronger men. The advent of crop cultivation equatorwards, mostly done by women as an

extension of gathering, allowed the relatively high profile of the female to continue. For

example, the relatively high position of women in the crop cultivating Iroquois society is

attributed by Brown(15) to their control of the economy. In contrast, as crop cultivation moved

polewards, the hitherto hunting men adopted farming and continued to play the controlling

role. Both crop production and animal rearing, therefore, both increased production, and

resulted in the subjugation of women by men polewards(16). Since men no longer got together

to hunt, the pressure for the demise of the local community also increased polewards

exacerbating the impact of seasonality. The state and its associated institutions then took over

the functions of the local community. The local community of known individuals with whom

the given individual interacted and enjoyed a sense of belonging was thus swallowed up by

the impersonal chiefdom, dukedom, principality, etc.. Institutions, including places of worship

and entertainment, then began to regulate the lives initially of individual families, and

gradually of single individuals and to cater for individual needs(17). Equatorwards, where local

communities continued to cater for the individual, some development of institutions did

indeed also take place, but only either as a result of local community initiative and thus subject

to its norms as contrasted to state imposition, or as a response to influence and/or conquest

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from polewards(18). Such influences and conquests from progressively polewards were easy

since the increase in technological capacity, the weakening of the local community and the

control of the individual by the impersonal state or institution made it progressively easier to

raise and equip armies and to regiment populations. These influences and conquests were also

instrumental in the demise equatorwards of matrilineal inheritance and the fall of women into

second class membership in society(19).

The poleward movement of humans, therefore, produced an incremental growth in science and

technology, inequality between the sexes, a prominence of the family, a demise of the local

community, a strengthening of state superstructures, and a regimentation of the individual.

When we consider innovations and the barriers to their transfer in our present day world,

therefore, the differences in the male individual dominated and more powerful North and the

local community dominated and weaker South stand out as incompatible counterparts The

former treats anything communal as a free good as indeed does the latter, but for opposing

reasons and towards opposing ends(20). Because now the North dominates, legal norms for

protecting the innovations of Northern individuals have been developed in this era of

globalization, but not for protecting the innovations of their Southern functional counterparts,

the indigenous and local communities. As a result, thousands of Southern collective

innovations are not only used by Northern natural and legal individuals without reciprocation,

but are given private IPR protection, and thus withdrawn from the common pool. Since the

majority of these innovation deal with living things, this process has been referred to as

“biopiracy”. Of the thousands of instances of biopiracy, I can mention the patenting of Endod

(Phytolocca dodecandra) from Ethiopia by the University of Toledo in the United States of

America for killing zebra mussles as an extreme example(21).

Industrial Designs and Geographical Indications

Article 25.1 of TRIPs(22) requires the “protection of independently created industrial designs

that are new or original” that “significantly differ from known designs or combinations of

known design features.” I know of no indigenous or local community traditional design that

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has been pirated by a textile factory and has become a cause for controversy. But this may

simply be a result of a lack of awareness on the part of indigenous and local communities of

what piracy is taking place, or on my part. I say this because I know many local communities

that have attractive traditional textile designs. Should such controversies arise from the use of

traditional community designs, they will be of similar nature to those of geographical

indications though the protection of geographical indications are, by their very nature,

perpetual but industrial design protections are for a minimum of ten years only (Article 26.3 of

TRIPs)(23). I think, however, that community textile designs are also perpetual in nature and

their protection in Community Rights to prevent piracy should also be perpetual.

The principle that misleading buyers by labelling a product so as to make it seem to have

originated in another specified part of the world should be prohibited is good. But, the TRIPs

agreement protects the geographical indications of only wines and spirit effectively (see

Article 23), and future tightening of the rules is envisaged only for the very wines and spirits

(See Article 24)(24). These are products in which Europe and North America have a strong

lead. Others, especially those produced by farming communities of the South, e.g. tea, coffee,

spices, do not enjoy such protection. For example, Basmati rice is a specialty of north-west

India and adjoining Pakistan. Rice Tec Inc., a company in Texas, the United States of

America, obtained a patent in the United States for a rice variety under the name of

Basmati(25). India contested the patent in 2000, and RiceTec withdrew it, but still uses the

qualifier “Basmati” for its rice. The stated reason for allowing the qualifier to be retained by

RiceTec is that, though a geographical indication in origin, the name “Basmati” has become

generic over the last 20 years, and India should have lodged its objections when it started

being used as a qualifier(26).

This argument would expect peasant societies to keep track of the names under which

products in the various countries of the world are sold. For example, coffee in Ethiopia is

produced by smallholder farmers, mostly in their backyards. Many geographical indications

for coffee are in current oral use in Ethiopia, e.g. Harer, Dembi Dollo, Yirga Chefe, Zege. It is

unrealistic of a global trading system to expect these smallholder farmers of Ethiopia to keep

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track of how the Brazilians and the Colombians and others name the coffee varieties they

produce and sell.

Benefitting from the use of geographical indications is thus wraped in layers of inequity and

there is as yet no debate on benefit-sharing related to geographical indications.

Copyrights

In the indigenous and local communities of the South, knowledge is mostly transmitted

through the word of mouth. Copyrights as recognized in TRIPs and other private IPR laws

deal with the recorded (written or electronic) expression, and not with the knowledge orally

transmitted (Article 9.2 of TRIPs)(27). For this reason, copyright is of little direct relevance to

indigenous and local communities. However, it is a major barrier in modernization and

indigenous and local communities must modernize. For, if they join the globalization process

without understanding it, they will be squeezed out of this world altogether, as did, for

example, the Carribs.

Patents and Breeders’ Rights

Patents are authorizations that give a monopoly(28) for “making, using, offering for sale,

selling or importing” for a paeriod(29) of at least 20 years (Articles 28 and 33 of TRIPs).

According to Article 27.1 of TRIPs(30), technologies are patentable “provided that they are

new, involve an inventive step and are capable of industrial application.” TRIPs itself

recognizes this to be vague and gives a footnote stating that the terms “inventive step” and

“capable of industrial application” “may be deemed by a Member [country] to be synonymous

with the terms ‘non-obvious’ and ‘useful’.” I find this footnote to be more confusing than

illuminating. This confusion is further confounded by the current impass between those who

want Article 27.3 (b) to be ammended to make living things and life processes compulsorily

patented, and those that want them to be totally excluded from patentability.

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The fact that, led by the United States of America, many industrialized countries are

embarking upon staying ahead of the South in genetic engineering by patenting genes(31) is

adding to both the confusion and to the division of views about patenting living things and life

processes. Even those industrialized countries that do not patent genes per se, are allowing the

patenting of gene constructs and thus genetically engineered organizms(32). Some types of

breeders’ rights give similar monopolies to what patenting plant varieties gives allow. Other

types allow the free flow of genetic resources to farmers and breeders and are thus not as

complete barriers to the traditional free flow of genetic resources as patents are. It must be

pointed out, however, that the Convention on Biological Diversity gives the owners of genetic

resources the right to share benefits irrespective of IPRs. The claims for benefit-sharing are

part of a global move by the South for a complete control and use of its own resources for its

own sustainable development. But IPRs in the North infuse this move with a belligerence that

stems from the South’s frustration at being stymied in its legitimate attempt to use these

resources.

Just as a fair and equitable share of benefits is needed between a husband and a wife in a

house to turn it into a home, so is it needed between North and South in this globalizing world

to create a harmonious society. Otherwise, just as the unjust home lives in terror and breaks

up, so will the world increasingly experience terror. But, while a husband and a wife can

separate to end the terror, there is no room for such a separation in our globalizing world. If

we let the existing plunder under tyranny go on with a mere semblance of international law,

globalizing terror will increasingly put our world on fire and all that we posses will turn to

ashes. However, I firmly believe that there is still time for justice to extinguish the fire of the

growing terror.

The Convention on Biological Diversity and the International Treaty on

Plant Genetic Resources for Food and Agriculture

In an attempt to tackle this global problem of continuing plunder by the mighty and thus

forestall terror, the Convention on Biological Diversity (CBD) was the first international

agreement that explicitly recognized the genetic resources found in a country as belonging to

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that country, however weak that country might be. Article 15.1 states(33), “Recognizing the

sovereign rights of states over their natural resources, the authority to determine access to

genetic resources rests with the national governments and is subject to national legislation”.

Even more ground breaking was the CBD’s recognition of the rights of indigenous and local

communities (Article 8(j))(34) to have their “knowledge, innovations and practices…relevant

for the conservation and sustainable use of biological diversity” legally respected. It also

empowers them to decide the use of that knowledge and those innovations and practices by

others as well as to share the benefits arising from that use.

Further developments have fostered equity since the CBD was signed in 1992 and now there is

very little resistance to the idea of fair and equitable sharing of benefits by states and their

indigenous and local communities when biodiversity and related knowledge and technologies

are used by others. But that idea is not yet enforceable through international law. The Bonn

Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits

Arising out of their Utilization were adopted by the 6th Conference of the Parties (COP) of the

CBD in the Hague in May 2002 as procedures for implementing these principles on a

voluntary basis. The view of the South is that legally binding norms of benefit-sharing are

required. After a lot of haggling, the industrialized countries grudgingly gave in. Therefore,

the 7th COP of the CBD, which took place in Kuala Lumpur in February 2004, passed its

decision VII/19 to create an ad-hoc open-ended working group on access and benefit-sharing

to negotiate an international regime. The decision describes the expected output of the

negotiations as follows: “The international regime could be composed of one or more

instruments within a set of principles, norms, rules and decision-making procedures, legally-

binding and/or non-binding.”

This same decision also “Invites Parties and Governments to continue taking appropriate and

practical measures to support compliance with prior informed consent of the Contracting

Parties providing such [genetic] resources…and of the indigenous and local communities

providing associated traditional knowledge…Such measures may include exchange of

information…incentive measures…to encourage users to comply…development of

model/standard contractual agreements… easy access to justice in case of violation of legal

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provisions in provider and user countries” and “administrative and judicial remedies, including

penalties and compensation….” Therefore, this decision makes it possible to enforce benefit-

sharing agreements across countries.

The decision also “Invites Parties to put in place mechanisms to ensure fair and equitable

benefit-sharing at the national level with relevant stakeholders and indigenous and local

communities". Since indigenous and local communities usually lack the capacity to demand

the national implementation of this decision that has the potential to help them, non-

governmental organizations will probably need to be active in raising their awareness and in

supporting them in their attempts to protect their interests nationally. The possibility is

otherwise high that governments will try to enforce their own sovereign rights to benefit-

sharing, but simply ignore the internal sharing that must take place with the indigenous and

local communities in the country.

With this proviso, these decisions should enable a better implementation of benefit-sharing

agreements pending the completion of the work of the ad hoc open-ended working group. The

realization that an international legal regime is in the making will also help ensure

compliance with conditions in benefit-sharing agreements.

The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)

was negotiated to make the conservation and use of crop genetic resources consistent with the

requirements of the CBD. The call for consistency was made by the parties at the time of the

adoption of the CBD in Nairobi in 1992. The provisions of the ITPGRFA, therefore, aim both

to conserve and sustainably use crop genetic resources, and to obviate the possibly drawn out

process of fulfilling the CBD’s requirement of coming to mutually agreed terms between food

genetic resources owners and users. Speed is seen as desirable in getting access to crop genetic

resources because, as stated in the 6th preambular paragraph of the ITPGRFA(35), crop

genetic resources “…are essential in adapting to unpredictable environmental changes and

future human needs.”

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Most of the provisions of the ITPGRFA apply to agricultural biodiversity in general. But,

Articles 10-12(36) define a multilateral system based on a list(37) of food crops and forage

plants held by parties in the public domain and by the International Agricultural Research

Centres of the Consultative Group on International Agricultural Research (CGIAR). Genetic

resources in that list will now be accessed automatically as needed without requiring the

negotiation of a new bilateral agreement every time. In return for the automatic access given,

the recepients will automatically give shares of the benefits that accrue to them from the use of

those genetic resourcess accessed. Article 13(38) describes how this will happen. Information

generated will be made available to all parties. Business confidential information will,

however, be withheld. Technology will be transferred to parties, especially to developing

countries. But IPRs will be respected. Capacity will be built through, among other things,

joint research programmes with, and in, developing countries. Shares of financial benefits will

go into a common fund. This will be compulsory in cases where the commercialized variety is

not freely available to other parties for research and breeding. Otherwise, it will be voluntary.

Within 5 years after coming into force, the parties may review the situation with a view to

making payment upon commercialization mandatory even when the varieties are freely

available for breeding. Obviously, the outcome of the negotiations for an international regime

on access and benefit-sharing under the CBD will decide whether this review happens and

what form it will take. This is because the ITPGRFA was negotiated to apply the CBD to

agricultural biodiversity. The money from the common fund shall be used for farmers,

primarily those in developing countries and countries with economies in transition. Such use

will be determined by the parties to the ITPGRFA.

The World Intellectual Property Organization (WIPO) is also developing a system for

protecting traditional knowledge(39). But, considering the fact that IPRs are now used for

market control and that maintaining them requires a big financial outlay(40), I am not sure

how useful such a protection will be to cash- starved and powerless rural indigenous and local

communities.

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The Elements that Should Go into a Benefit-sharing Agreement

The CBD has already defined the benefits that should accrue to an owner of genetic resources,

knowledge, innovations or practices upon their use by another party. The Organization of

African Unity (now the African Union) has incorporated these benefits in its “African Model

Law on the Protection of the Rights of Local Communities, Farmers and Breeders, and for the

Regulation of Access to Biological Resources”(41). I have already summarized these benefits

in a paper I presented at a conference(42). They include: research and development to be

carried out in the country giving access (Art. 4.1. of the Model Law, based on Art. 15.6 of the

CBD); prior informed consent of both the state and the indigenous or local communities (Art.

4.2 of the Model Law, based on Art. 15.5 & 8(j) of the CBD); a list of other conditions to agree

to before a contract is signed (Art. 4.3 of the Model Law, based on Art. 15.4 of the CBD),

including commitments for the conservation of biodiversity (Art. 4.3 (a), (g) & (h) and Art.

4.9 of the Model Law, based on Art. 6.7, 8 (c), (d), (j), (k) & (l), 9(c) & (d) and 10(a) & (b)

of the CBD); commitment to provide information and duplicate specimens to the country

giving access (Art. 4.3 (b), (c) & (g) of the Model Law, based on Art. 15.7 and 17.2 of the

CBD); commitment not to transfer genetic resources, knowledge, innovations or practices to

third parties without authorization (Art. 4.3 (d) of the Model Law, based on Art. 15.5 of the

CBD); commitment not to patent (Art. 4.3 (e) of the Model Law This is not directly based on

the CBD but on the fact that patenting living things and life processes is disallowed in the laws

of most developing countries. It should, however, be noted that Art. 16.2 of CBD, though

recognizing IPRs in general terms, does not specifically provide for the IPR protection of

biological materials, showing that the choice of what and how to protect is left open.

However, as already pointed out the issue has caused a North-South divide in the call for the

revision of Article 27.3 (b) of TRIPs. It is thus best to avoid at

least patents); payment for the community labour that has gone into creating or finding

out the specific useful characteristic of the biodiversity or for the knowledge, innovation or

practice being accessed and the work load borne by the state in making the access possible

(Art. 4.3 (f) of the Model Law, based on the common practice of recovering expenses incurred

while giving a service); commitment to abide by certain procedures aimed at ensuring the

implementation of the mutually agreed terms (Art. 4.4, 4.5, 4.6, 4.7, 4.8, of the Model Law,

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which are obvious and need no explanation, except for pointing out that in Art. 4.7, a

guarantor is required because, often, the person getting access will leave the country before

the benefit accrues to him and there would then be no means of ensuring that each party abides

by the mutually agreed terms. This is consistent with the decision VII/19 of the 7th COP of the

CBD which, as pointed out, requires states which are parties to the CBD to enforce

compliance of their citizens with their respective mutually agreed terms).

I have, in fact, published a model contract for use between the owner and user of genetic

resources and/or technologies(43). But, since legal systems vary from country to country, this

present itemization of the required elements will suffice here and model agreements are best

developed by, and for, each country separately.

Concluding Remarks

IPRs have made it obvious that benefits derived from biodiversity, knowledge, innovations or

practices accessed have to be reciprocated by giving a share of the benefits derived. But, even

without IPRs, it is fair that benefits be shared. I have attempted to show this complex and

evolving issue in its international context. I have deliberately stayed away from any attempt

even at a partial review of actual benefit-sharing contracts. This is because those that I know

of have not paid full attention to the entitlements of states and indigenous and local

communities as defined by the CBD. This tendency towards only a partial fulfillment arises

from the fact that the CBD is only a framework convention and thus usually lacks enforcement

provisions. The rigorous international implementation of these entitlements has, therefore, to

await the finalization and coming into force of the international regime to be negotiated by the

ad hoc open-ended working group established by Decision VII/19 of the 7th COP of the CBD.

When this has happened, but hopefully also while it is happening, at least in the use of genetic

resources and traditional knowledge, globalization will shed off much of its present blatant

unfairness. Also hopefully then, the likes of the devastation in the 1984-5 serious famine in

Ethiopia that affected millions and killed thousands of smallholder farmers and their family

members, will never reccur. That famine was the result of the coincidence of a serious

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drought, which was no doubt at least exacerbated by global warming, and a civil war, which

was fanned by the globalization of the capitalist-communist confrontation of the time. As the

major superpower, the biggest cause of both the global warming and the globalized

confrontation was the United States of America. Doyle(44), who wrote at that very time, i.e. in

1985, tells us that “the genetic material found in one Ethiopian barley variety resistant to

yellow barley mosaic now saves American farmers an estimated $150 million a year….”One

wonders how that sum and the recognition of responsibilities it reflected might have altered the

famine and the war.

I would like to point out that, even during that cold war period, American food aid came to

Ethiopia, and the devastation would have been worse if it had not come. Nevertheless, in the

cooperative world that will ensue when fairness based on just international law reigns, there

should be no civil wars fanned from outside, and droughts should always remain manageable

enough not to cause devastation.

That is why this Workshop is vital. And that is why I am grateful to the funders and organizers

of this very important Workshop. I wish you all success in clearing your thoughts on access

and benefit-sharing during this Workshop.

Thank you for hearing me through

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Endnotes

1. Doyle, Jack, 1985. Altered Harvest: Agriculture, Genetics and the

Fate of the World’s Food Supply, Viking Penguin Inc: New York, NY,

p.301.

2. Clunies-Ross, Tracey, 1996. Farmers, Plant Breeders and Seed

Regulations: An Issue of Control, The Ecologist: Sturminister Newton,

Dorset, U.K., p.5.

3.World Trade Organization, (WTO), 1995. The Results of the Uruguay

Round of Multilateral Trade Negotiations, WTO: Geneva, p. 365-403.

4.Doyle, Op. cit, p. 301 states, “The social benefits… include

distributing the inventions and knowledge throughout society…”, and the

first preambular paragraph of TRIPs (WTO, Op. cit., p. 366) states,

“Desiring… to ensure that measures and procedures to enforce

intellectual property rights do no themselves become barriers to

legitimate trade.”

5. WTO, Op. cit, p. 379-380.

6. The fourth preambular paragraph of TRIPs (WTO, Op. cit., p. 366)

states, “Recognizing that intellectual property rights are private

rights.”

7. Tewolde Berhan Gebre Egziabhr, 1996. “The Convention on Biological

Diversity, intellectual property rights and the interests of the

South”, in Solomon Tilanhun and Sue Edwards (ed.), The Movement for

Collective Intellectual Rights, The Institute for Sustainable

Development: Addis Ababa, p. 15-42.

8. Toynbee, A. J., 1962, A Study of History, Vol. 1- The Genesis of Civilizations, Oxford

University Press: London, p. 249-278 has concluded that environment alone cannot explain the

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birth of civilizations, but that challenge and response can. I see both challenge and response as

primarily related to the environment. I had not read Toynbee when I wrote the following:

Tewolde Berhan Gebre Egziabhr, 1991. “Management of mountain

environments and genetic erosion in mountain systems: the Ethiopian

example, Mountain Res. & Dev., 11: 225-230. But, reading about stone tools that ancient

humans left, I am still convinced that the weather was the main challenge that elicited their

technological responses. When we come to more modern times, increasingly more factors

emerge as the challenges that elicit equally diverse responses, including technological.

9. Clark, J. Desmond, 1981. Tools and ourselves, Seventeenth Raymond

Dart Lecture, delivered 4 July 1979, Witwatersrand University:

Johannesburg.

10. Clark, J. Desmond and H. Kurashina, 1980. “New Plio-pleistocene

archaeological occurences from the plain of Gadeb, Upper Webi Shebele

Basin, Ethiopia, and a statistical comparison of the Gadeb sites with

other early stone age assemblages, Anthropology, 18: 161-187.

11. Kraybill, N, 1977. “Pre-agricultural tools for the preparation of

food in the Old World”, in Reed, C.A. (ed), Origins of Agriculture,

Mouton Publisher: The Hague, p. 485-521.

12. Good, Ronald, 1964. The Geography of the Flowering Plants,

Longmans: London, p. 43-45.

13. Green, J.R., 1992, in his A Short History of the English People,

The Folio society: London, p. 4, describes individualism in ancient

England, which gave the world the present industrial culture, as

follows: “As every freeman was his own judge and his own legislator, so

he was his own house priest; and the common English worship lay in the

sacrifice which he offered to the god of his hearth”.

14. Gough, K., 1975, “The origins of the family”, in Reiter, R. R.

(ed), Towards an Anthropology of Women, Monthly Review Press: New York, p. 51-76

15. Brown, J. K., 1975, “Iroquois women: an ethnohistoric note”, in

Reiter, R. R, (ed), Op. cit., p. 235-251.

16. For example, reference can be made to: Draper, P., 1975, “!Kung

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women: contrasts in sexual egalitarianism in foraging and sedentary

contexts”, in Reiter, R. R (ed), Towards an Anthropology of Women,

Monthly Review Press: New York, p. 77-109; and Sacks, K, 1975, “Engels

revisited: women, the organization of production and private property”,

in Reiter, R. R. (ed), Op. Cit., p.211-234.

17. Green, J. R., 1992, Op. cit., p.1-43 has described this for ancient England. After killing off

the Celts and chasing away the survivors, the English clans settled down in Southern England.

The consequent wars created a king and an aristocracy out of clan leaders. Conversely, hitherto

freemen among the English themselves became serfs and slaves after being captured in battle

or after failing to pay debt. The kingdoms continued to coalesce. One of the kings, Offa,

negotiated with Charlemagne "the first monument of foreign diplomacy, which secured

protection for the English merchants and pilgrims" (p. 42)

18. For example, Christianity became a state religion in Ethiopia in 325 AD as an influence

from Palestine.

19. For example, in Africa, as pointed out by Snyder, M. C., and Mary

Tadesse, 1995, African Women and Development, Zed Books: London, p.

20-26, women in the pre-colonial era, as the cultivators of the land,

were in charge of what happened to its produce. Sorrenson, M. P. K.,

1968, in Origin of European Settlement in Kenya, Oxford University

Press: London, p. 177-179, points out that the customary land tenure

was that of usufruct for the family, with ownership being that of the

lineage. Frank, A. G., 1979, Dependent Accumulation and

Underdevelopment, Monthly Review Press: New York, p. 159, points out

that, during colonialism, the land that was not taken by Europeans was

recognized as belonging to chiefs. In post-colonial Africa, the system

was simply adopted with African men replacing the Europeans thus giving

rise to the disinheritance of women who, however, still remain the

farmers.

20. The individual dominated North considers anything communal a free good to enable entrepreneurs to privatize it so as to get rich; the community dominated South considers it equally a free good, but, in contrast to the North, so as to make it accessible to all and help all equally.

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21. 2Rural Advancement Foundation International (RAFI, now called ETC Group), 1993. RAFI Communique 1993, Endod: a case study of the use of African indigenous knowledge to address global health and environmental problems, RAFI: Ottawa. The case is an extreme example because the traditional knowledge is Ethiopian, but also the research results that were used in obtaining the patent were carried out by Dr. Aklilu Lemma and his team in Addis Ababa University, Ethiopia.22. WTO, Op. cit, p. 378.23. Ibid, p. 379.24. Ibid, p. 376-379.25. Research Foundation for Science, Technology and Ecology, 1998. Basmati Biopiracy, Research Foundation for Science, Technology and Ecology: New Delhi.26. Commission on Intellectual Property Rights, 2002. Integrating Intellectual Property Rights and Development Policy, Commission on Intellectual Property Rights: London, p. 87-90.27. WTO, Op.cit., p. 370.28. Ibid, p. 380.29. Ibid, p. 383.30.Ibid, p. 379-380.31. Doyle, Jack, Op. cit., p. 311-321.32. Commission on Intellectual Property Rights, Op. cit., p. 59.33.Secretariat of the Convention on Biological Diversity, 2001. Convention on Biological Diversity, Secretariat of the Convention on Biological Diversity: Montreal, Quebec, p. 13.34. Ibid, p. 9.35. Food and Agriculture Organization of the United Nations (FAO) 2001. International Treaty on Plant Genetic Resources for Food and Agriculture, FAO: Rome, p. 1.36. Ibid, p. 6-8.37. Ibid, p. 20-21.38, Ibid, p. 8-10.39. World Intellectual Property Organization (WIPO), 2004, “WIPO Member States lay foundations for protection of traditional knowledge”, Press release 378/2004, March 19, WIPO: Geneva.40. Commission on Intellectual Property Right, Op. cit., p. 145-148.39. Ekpere, J. A., 2001, The African Model Law, The Organization of African Unity: Addis Ababa, p. 33-71.42. Tewolde Berhan Gebre Egziabher, 2003, “Taxonomic Botany and Globalization”, paper presented to the 17th AETFAT Congress, 21-26 September 2003, Addis Ababa.43. Tewolde Berhan Gebre Egziabher, 1996, "Biodiversity collecting: in the South, of course!”, in Solomon Tilahun and Sue Edwards (ed.), Op. cit., p. 1-14.44. Doyle, Jack, Op. cit., p. 200.

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